Hague Update – From JCICS Convention

We have been honored to hear from Tifany E Markee, Esq about her knowledge of international law and the impact the Hague Convention may have on Guatemalan Adoptions. Recently she attended the JCICS convention to learn more about this situation. She has posted this information graciously in various places. Though it is long it is well worth reading if you are involved in any way with adoption from Guatemala. So with no further delay and with much gratitude, here is her summary.

Hi all — as promised, I am providing an update and summary of the events at the JCICS conference from which I just returned. I will start with a few generalities, and then cover 3 main issues that were raised.

Firstly, I want to say how wonderful JCICS really is. This was my first exposure to one of their conferences, and I left with such a sense of awe over what they do. I know that PAPs often feel as if no one is going to bat for them.. let me reassure you that JCICS is indeed in the trenches, and has been able to access many of the inner circles that are so important in IA. A huge hats off to them. Those that are with agencies that are members of JCICS should also feel very confident in their agencies, as the agency employees and directors are very passionate about what they do and dedicated to the PAPs and the children of Guatemala.

Hannah Wallace was not able to attend the conference, but it was clear that she is also a “heavy hitter” in this game, and is due a great deal of respect and admiration for her tireless work with Focus on Adoption.

So fear not. Your voices are being heard, and the right people are hearing them!

As the attorney of a member agency, I was able to attend all of the member events… including the caucuses. I was also able to attend the excellent briefings of the USCIS, Congressional Committes, and the Dept of State. Those will be addressed below.

I also want to preface this with an important note:

None of what I am providing is to supercede your agencies as the main source of information and advice. I would recommend, and in fact demand, that you take what I am providing as a supplement to the info that your agencies are providing. I am a believer that you can never have too much info. But I am very sensitive to the fact that I am not stepping on agencies’ toes, or placing them into a ’second’ position for info.

Now that all of that has been covered, I will break this into 3 main issues: processing in Guatemala, status of Guatemala as a Hague country, and the accreditation process under the Hague.

Firstly, I was very pleased to hear, and pleased to report, that JCICS sent a letter in February of 2006 to the Department of State, asking for changes to be made with processing at the US consulate in Guate City. This letter from JCICS is a perfect example of what this organization does on your behalf. The result was that the Department of State held a stakeholder’s meeting on April 5th, aimed at improving efficiency and customer service. The changes that have been implemented since that meeting include:

Preapproval applications are reviewed within 30 days after receipt of DNA (or receipt of abandondment paperwork). This does not mean that PA is issued within 30 days, as there may be a need for additional info, but the file is physically reviewed within 30 days.

Final documents can now be submitted Monday through Thursday AM from 9:00 to 9:30 AM. If all appears okay, the case is sent to the consulate within 48 business hours (note: business hours).

The issue with numbers has now been improved. Every AM, the consular officer goes out and issus 40 numbers. He/she then makes a note of what needs to be done, and has the staff inside ready for those incoming cases, etc.

Parents have apparently not been receiving emails notifying them of preapproval issuance. The Dept of State has looked into this, and confirms that it is sending the emails to the addresses provided on the cover sheets of the cases. They reminded the agencies to remind their attorneys that the info provided needs to be accurate.

Regarding general status emails, the Dept of State confirmed that they have been responding within 3 business days to incoming emails. They provided an email address to the agencies present that day in case an email does not get answered (your agency will have this contact info).

The Department of State stated that in FY2005, they provided 3900 preapprovals and 3700 visas in final cases. Just so far in FY2006 (which began Oct 1, 2005), they have issued 2250 preapprovals and 2300 final approvals on cases. Thus, they are slated to exceed the processing of last year. Further, March 2006 was a record month for them: they issued 550 orphan visas, and 400 preapprovals in a single month.

I think the take-home lesson of this was that the Dept of State DOES hear your concerns, and has made some changes to its system. I would encourage you to remain in contact with your agency about any further concerns so that they may be presented via JCICS.

The next major question was that of the status of the Hague Convention. As you can assume, it was a hot potato and a MAJOR issue of concern for agencies.

The Dept of State provided some info at the open panel, as well as at the Guate caucus meeting. It is as follows:

David Abramowitz, a rep of Representative Lantos, began by stating that Congress and the Dept of State have both raised concerns with the current system in Guatemala. They are suspicious of unlawful payments, as well as any coerced consent that is being taken from the borth mothers. He applauded the Hague as a method of eliminating those concerns. He did confirm that Congress currently has no action planned regarding Guatemala – instead, they are monitoring the situation via the State Dept. Chris Lamora from the Intercountry Adoption Unit of the Dept of State also raised these same concerns, regarding a lack of consistent regs, a lack of in-country safeguards, and a system still run by notaries and lawyers.

The real details of Guatemala and the Hague did not really come to head until the Guatemala caucus was held. Scott Boswell from the Dept of State was able to stay around for that meeting, and was quite interesting to hear. The highlights are as follows:

The State Dept does indeed consider Guatemala to be a Hague country. That much is crystal clear. He explained, generally, that international law does not recognize or give any credence to Guatemala’s internal/ domestic court decision which found that the Hague violated the country’s constitution.. The position of the State Dept is that under the International Law of Treaties, a treaty becomes effective after ratification, regardless of the country’s internal readiness for the demands of the treaty. As such, internal/ domestic issued have no impact on the actual effectiveness of the treaty. As further evidence, Mr. Boswell noted that 5 countries formally objected to Guatemala’s acession, and that can only occur if Guatemala indeed signed the Hague. So this position has been reaffirmed: the US considers Guatemala to be a Hague country.

Mr. Boswell stated that it is too early to make any predictions on the effects of this all. He was adament that he not make any conclusions regarding the “what ifs.” He simply would not go there. He stated several times that we all should want Guatemala to make changes; to improve their system such that the children are better protected. I am not sure that anyone argued with him on this point, but there remained concerns.

The alternatives were raised, and answered as follows:

Can Guatemala withdraw from the Hague? Mr. Boswell stated that while this is theoretically possible, it is not politically feasible. He felt that the message to the international community is that this move was being taken solely to appease the US.. so I got the impression that the State Dept does not like that option.

Can the US lodge a formal objection like 5 other countries did? In my reading of the Hague regs, it appears that objections can only be lodged within 6 months of acession.. However, even if possible, Mr. Boswell stated that this would also be politically infeasible. He said that the US works very hard to dispell fallacies that the US can influence and control IA practices… and that we are not in the busiess of singling out a particular country for special treatment. It is what he called a “politically sticky situation.” I also go the clear impression that the State Dept was not actively considering this move.

This leaves us with the only available option: that Guatemala change its system to come in line with the Hague. This, to the State Dept (via Mr. Boswell) is the best option… He stated that it really is in the best interest of the children to have a more secure and transparent system. He confirmed that the State Dept was in ongoing dialogues with Guatemala about the changes, and that the Dept had enumerated the various requirements under the Hague. One member of the audience asked (rhetorically) if Mr. Boswell knew what would happen to the children of Guatemala if adoptions stopped — Mr. Boswell deflected the question. In the end, the Dept of State feels that it needs to see that Guatemala pass, and IMPLEMENT the necessary changes.. and that the best interests of the children wil be served if those changes are made.

Regarding timing of implementation, the dates varied greatly. At the beginning of the panel, a representative of the Congressional Coalition on Adoption Institute (an organization that advises Congress on adoption issues) stated that they would like to see implementation in “spring of 2007.” Mr. Boswell confirmed that the State Dept was aiming for implementation as early as possible in 2007… but he did not provide a specific date. I also heard others saying that they had been told that most of the govt officials are aiming for an early-to-mid 2007 date.

However, JCICS is pretty clear that the date will prob be, at the very earliest, late 2007, and possibly/ probably early 2008. JCICS feels that the accreditation process will likely take 15-24 months, and given that actual ratification cannot occur until after accreditation of the agencies, late 2007/ early 2008 is probable.

FWIW, I agree with JCICS‘ position. There is a lot that has to be done in order to ratify, and unless everyone moves at lightning speed, early 2007 is nearly impossible.

I defer back to my original comments that:

1. There is no need to panic… nothing is happening tomorow.
2. If you are on the fence, I could encourage everyone to make a decison and move on it when possible.
3. Know about the possible upcoming changes, and make it a part of any decision process about going through Guatemala.
4. Talk to your agencies.. they generally know best!

Finally, the conference provided agencies with a lot of awesome information on the actual accreditation system. None of that impacts any of you… it is the job of your agencies to get accredited. But I do believe that it will be a great method of screening agencies in the future, so I am looking forward to seeing a more standard and uniform process for such screening.

Phwew… that was long. I expected that it would be. I have intentionally left out some specifics regarding contact info for various govt entities, and specific conversations with agency members, etc. with the hope that you all will use this as a general information source, and maintain (1) an open dialogue with your agencies, (2) support for JCICS and FOA (who are advocating on your behalf), and (3) an educated approach to Guate adoptions.

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